Normative Subjects Self and Collectivity in Morality and Law MEIR DAN-COHEN OXFORD UNIVERSITY PRESS -5 Individuals, Citizens, Persons In discussing the interplay between norms and their subjects, individual and collective, my main emphasis thus far has been on the role of norms in the construction (and revision) of subjects. I now shift attention to the norms themselves by inquiring into what their involvement in the con­ struction of their subjects can teach us not just about those subjects but also about the norms. In pursuit of this agenda, the present chapter casts a wide net. The aim is to draw from the meaning-conception of self that I have introduced earlier some implications for the general shape of the practical domain, a domain consisting of the totality of norms concerned with guiding our behavior and shaping our life. I call this all-inclusive field ethics. So understood, ethics comprises two prominent subfields, morality and law. It also includes a third: the less commonly recognized yet highly significant domain of prudence, which consists of norms guid­ ing us toward the accomplishment of our individual aims. In discussing ethics, I begin by inquiring about law. Exploring law's claim on us, what I call its normative grip, reveals it to be intermediate, in a sense to be explained, between the two other clusters of ethical norms, moral and prudential. Recognizing in this way law's intermediate position offers in the first place a clue to the kind of authority law itself ordinarily claims. More importantly, situating law between prudence and morality suggests a picture of how all three branches of ethics relate to each other, as well as the way they all relate to their common subject, the human self. As is ll9 ll8 VALUE AND HUMANITY Individuals, Citizens, Persons olitical arrangements are refracted in, and are a refraction of, the obvious, all this adds up to a rather tall order, and in this chapter I make an d P in its pursuit only some preliminary and tentative comments. structure of the human self; to study the one is to study the other. Two preliminary points. First, the political question arises with partic­ ular acuity with respect to an unjust state. "My country, right or wrong" I. THE POLITICAL QUESTION is a well-known, and for many, notorious, sentiment. But we must also uery allegiance to a just state. Our obligations to our own political It is commonly believed that countries, their governments, and their laws ~ystem are supposedly different from our obligations to other s'.stems, no make at least a prima fade normative claim on citizens. To be sure, atti­ matter how just these other systems may be. The fact that any given coun­ tudes to one's country, its government, and its law may diverge, and each try, government, or law is just does not by itself bind us to them in the way raises some distinctive philosophical issues of its own: under the heading in which we are supposed to be bound to our own. Second, the political of patriotism, philosophers explore the general, mostly affective attitude question is a quest for justification. Such a quest does not arise in a void. to the country; political philosophers tend to focus on the question of the Justification usually proceeds as an attempt to silence some qual~s. or government's authority; and legal philosophy is centrally concerned with reply to putative or actual opponents. Allegiance to the state, political the duty to obey the law. But though separable, these issues are closely re­ authority, and law's bindingness need to be justified. Why? A common lated. Ordinarily, a vital aspect of allegiance to one's country is acknowl­ answer fixes on the state's coerciveness, since coercion by itself is pre­ edging its government's authority, and law is by far the most significant sumptively bad. But coercion is not my primary concern. In focusing on medium through which that authority is exercised. The divergent issues normativity, I mean to attend to an aspect of the state, its government, that arise in this area have a common core: we are expected to pay some and law that is independent of coercion, and, if anything, is antithetical heed to our country's interests by, in part, accepting its government's au­ to it. The state's and so the law's normativity consist in an appeal to vol­ thority, an acceptance manifested in part in a disposition to obey the law. untary allegiance and compliance. The political question is an invitation What grip, if any, does this composite claim have on us? Call this the to assess this appeal quite apart from the fact that the state is in a position political question. to enforce it. What challenge other than coercion gives rise to the political In one form or another, the political question has occasioned over question and guides the efforts to answer it? time mountains of writings. Under these mountains, however, is buried a It is instructive that there are in fact two prominent challenges, dia­ simple if dispiriting truth: we are no closer to a satisfactory answer than metrically opposed: one associated with an individual, self-regarding we have been before. Philosophers who till these fields have their employ­ standpoint, the other with a universal, other-regarding standpoint. Seen ment secure. In these circumstances, adding yet another molehill to the from the individual's standpoint the question is, why should I assume landscape may seem foolhardy or worse. However, my aim in engaging the burdens the state seeks to impose on me and accept the setback to with this question is not to offer a better answer, since the aim is not to my own interests it often demands? From the other standpoint the ques­ provide an answer at all. It is rather to use this question as the vantage tion is, why do my political community's claims get priority over similar point for an imaginative reconstruction, partial and simplified, of the claims of other people or humanity as a whole? Each of the two opposing normative terrain as a whole. The results are the rudiments of a theory, perspectives is commonly tied to a normative orientation of its own: indi­ guided by an old insight that goes back at least as far as Plato: that social vidual self-interest defines the domain of prudence, whereas the universal 120 VALUE AND HUMANITY Individuals, Citizens, Persons 121 concerns are the turf of morality. The political question accordingly arises stably either as one's own or as those of others. Although a satisfactory between the prudential and the moral, and is answerable to both. answer to the political question would have to meet both the prudential That the challenges to the state's normative claims come from two op­ and the moral challenges to the state's normative claims, the answer also posing directions is sometimes obscured by the fact that the same idiom, needs to account for the perceived distinctiveness of these claims, rather of autonomy, is used to express both challenges: being subjected to the than collapsing them into one pole or the other. state's authority and deferring to its demands is allegedly inimical to one's I have mentioned that the twin challenges to the state's normative autonomy. But here the polarity is hidden by an ambiguity in these claims claims are sometimes phrased in the idiom of autonomy, either moral or between personal and moral autonomy. Roughly, personal autonomy con­ personal. Here, too, the apparently intermediate location of the political cerns a person's ability to carry out her wishes and desires and so advance between the individual and the universal can be observed, confounding her interests. Moral autonomy, at least as interpreted by Kant, is a matter the binary division. Autonomy is self-government, and a state's sover­ of acting on universally valid principles one endorses.1 The charge that po­ eignty is the realization of a people governing itself. Who, however, is the litical authority and the law threaten autonomy can accordingly amount referent of this reflexive expression? It may appear that I have already an­ either to the claim that they restrict people's capacity to pursue their own swered the question in the course of posing it by designating "the people" goals, or that they displace the universal principles that as moral agents for that role. But the history of political philosophy is in part the record people otherwise endorse. of pursuing two radically different interpretations of this answer and of Given the two polar challenges, it is not surprising that answers to the coping, inconclusively, with the difficulties to which each of them leads. political question should often consist in efforts to account for the state's "The people" either labels an aggregate of individuals, or a single entity, normative claims in one of two opposite ways, arguing either that these existing over and above the group of individual members. Both answers, claims arise out of self-regarding individual concerns and are congruent however, create a rift between the self-government of the state and the with them, or else that they are the implications of a universal morality autonomy of its individual members: each individual is governed by a and part of it. This is not the place to canvass the voluminous literature, group of other individuals in the one case, or by an independent collec­ other than to comment that the very volume and endurance of the two tive entity in the other.